151 Ind. 123 | Ind. | 1898
Lead Opinion
Upon the appellee’s petition, the lower court directed the issuance of a writ of mandamus against the appellant, as auditor of Steuben county., requiring him to issue a warrant in favor of the relator for $18.50, part of the costs of repairing a public drain extending into the counties of Steuben and DeKalb. The sufficiency of the petition, upon demurrer and independent assignment of errors, presents the question for (decision by this court.
It was alleged that in the year 1889 proceedings were instituted before the board of commissioners of DeKalb county for the location and construction of a public drain extending from a point within said county to a point within Steuben county; that such proceedings were had, by the joint action of the boards of said two counties, as caused the' location and construction of the drain so sought; that during the summer of the year 1895 said drain, so constructed, became obstructed and in need of repairs,
Against the sufficiency of the petition, it is first urged that the surveyor of one county has no authority to cause repairs to be made upon a drain in two counties, but that such power rests with the “public officers of the counties interested,” jointly, under section 5679, Burns’ R. S. 1894 (4310, R. S. 1881). That section was numbered twenty-six in the act of 1881 (Acts 1881, p.410),an act providing for the construction and repair of public drains in one or more counties by proceedings before the boards of county commissioners. The twenty-third section of said act (section 4307, R. S. 1881), provided for repairs of drains in one or more townships of a county by the trustee or trustees of such township or townships, and provided a
Transposing such of these provisions as relate directly to the question in hand, it is clearly provided that under whatever law a drain is constructed, it is the duty of the surveyor of the county in which the proceedings are had to make the repairs; and, if the ditch is in more than one county, he must certify the cost of repairs, and the assessments against the lands of any county to the auditor of such county for collection. There is no provision for the joint action of surveyors, and the only confusion that could arise upon this statute is upon the provision that the duty as to repairs rests upon the “surveyor of the county
This provision was certainly intended to apply to drains in one county, or in several counties, and was employed in connection with duties cast upon a single officer, whether such duties had reference to a drain in one county or in two counties. It is evident, therefore, to give the several provisions consistency, and omit none of them, that the legislature intended to designate as the officer to perform the duty the surveyor of the county in which the proceedings for the original construction were begun. We are not in doubt that the surveyor of DeKalb county was' charged with the duty of repairing the ditch in question, and that Steuben county is chargeable with its proper proportion of the cost of the repairs. With reference to repairs in a single county, the rule is perhaps changed by the act of 1889, Acts 1889, p. 53; section 5632, Burns’ R. S. 1894.
It is further insisted that the petition was bad in not alleging notice to the auditor that the relator was the assignee of the original claimant; that the surveyor had no power to employ the service for which the claim was presented, but that it was a service owing by him to the undertaking, and to be paid for in his per diem, and that the surveyor, as a public official, could not, under the rules of public policy, become the assignee of a claim upon the amount of which he was required to pass judgment.
The cost of making copies of the assessment notices was a proper charge, and whether a printer, a typewriter, or longhand writer, performed the service, its value was a charge against the repairs, and was not necessarily a part of the official service of the survey- or. Nor do we think that a valid assignment to the surveyor of a Iona fide claim, allowed and certified to
As to the notice to the auditor of the assignment of the claim to the relator, a more serious question arises against the petition. Demand for the performance of an act is a prerequisite to the petition for a writ of the nature of that here sought. Lake Erie, etc., R. W. Co. v. State, ex rel., 139 Ind. 158. The writ being of an extraordinary character, issuable only where equity requires it, and where the end sought can only be attained by it, every reason seems to require that the party against whom it is asked should be shown to be in the wrong in refusing to perform the act without the writ. In this case the auditor is not shown to have improperly refused to issue a warrant to the relator, for a sum appearing from the relator’s certificate to be owing to another, and, until it is shown that he had knowledge of the assignment, he could not be presumed to act improperly in refusing to issue the warrant to an assignee. For this reason the petition was bad, and the judgment is reversed.
Rehearing
On Petition for Rehearing.
The petition for a rehearing is directed only to the question of the power of the surveyor to make the repairs in question. If we understand counsel, they maintain that the act of 1885, section 5631, Burns’ R. S. 1894, does not apply to the
The intention of the General Assembly to create a new method of repairing and collecting the cost seems manifest unless the proviso referred to should be held to limit the act for drainage secured by proceedings in the circuit court; The necessity for such legislation,
The proviso, in our opinion, does not defeat this intention. It speaks with reference to the act of April 21, 1881, as a whole, and expresses the purpose to keep said act alive and in force. It is not to be implied that the new provision as to repairs, in the absence of the proviso, would repeal the act of April 21, 1881. Construing the two acts of 1881 with that of 1885, it seems clear to our minds that it was intended by the latter act to provide for the cleaning of drains in two or more counties by the surveyor of the county in which the proceedings were instituted, whether by proceedings in the circuit court or in the commissioner’s court.
In the original opinion we employed language implying our conclusion that section 4310, R. S. 1881 failed by the holding that section 4307, supra, was not constitutional. From the holding in Ingerman v. Noblesville Tp., 90 Ind. 393, that only the provisions, of section 4307, supra, as to assessing lands for the re-, imbursement of the township fund, were unconstitutional, section 4310, supra, would probably not be defeated. But, as intimated in the original opinion, section 4310 was of doubtful force from its failure to designate the officers and the procedure for repairing joint drains. • However, we are clearly of the opinion that the act of 1885, supra, provided a complete method, and applied when the repairs here in question were made. The petition is overruled.